good on a direct appeal. The deed, therefore, vested the title to the land in Martin and French.

It

The further facts upon which the plaintiffs base a right to redeem are to the following effect: The deed from the administrators to Martin and French bears date, as has been said, the 9th January, 1877. vests in Martin 22-30 and in French 8-30. On the 2d February, 1877, Martin conveyed to William French 2-30, and to E. P. French 10-30; so that Martin and W. L. and E. P. French became the owners of the land in equal undivided parts. This deed contains a stipulation to the effect that the three were bound by a contract, the terms of which are not stated, made by the administrators of the one part and Martin and W. L. French of the other part. On the 28th December, 1877, James S. Martin, W. L. and E. P. French conveyed the land back to "E. B. Stowe and Clarence Buell, administrators of the estate of J. J. Stowe," for the consideration of $3,300. This deed contains the statement that it is made in compliance with the conditions of a certain contract to said parties of the second part, made by the parties of the first part, William L. French and James S. Martin, dated November 27, 1876. On the 12th February, 1878, the administrators made a report of sale of certain real estate, not now in question, to the probate court, which report was approved. This order of approval goes on to say: "And it appearing to the court that since the last term of this court said estate has acquired title to the following land," describing the section now in dispute, "and that there are yet remaining debts due by said estate and unpaid, it is ordered that said administrators sell at private or public sale, for cash, all of the following lands," describing this section, and also other lands included in a former order of sale. Thereafter, and on the 31st December, 1878, E. B. Stowe and Clarence Buell, by their warranty deed of that date, conveyed the section now in question to Thomas Banks for the consideration of $5,500.

There is considerable conflict in the parol evidence, but, taken in connection with the recitals in the deeds, it establishes the following facts: Prior to the date of the administrators' deed, the administrators entered into a written agreement, which was not produced on the trial, whereby they acquired the right to reacquire this section of land by paying to Martin and French $3,000 and interest thereon within one year; that the land was conveyed back to the administrators, pursuant to this agreement, for the consideration of $3,300; that the agreement was made by the administrators for the ben efit of the estate, and not for their individual benefit; and that Thomas Banks had notice and knowledge of this agreement when he purchased the land. He paid $5.500 for the land, and the administrators ac

counted to the estate for the money thus received. On final settlement there was paid to each of the three plaintiffs the sum of $1,051. The administrators' deed vested the title in Martin and French, and the deed to the administrators vested the title in them, but they held the land in trust for the benefit of the estate. Mabary v. Dollarhide, 98 Mo. 198, 11 S. W. 611. The creditors and heirs could have pursued the land, while the title remained in the administrators; and the question is whether the heirs can enforce their claim against Banks, who purchased with full knowledge of the facts constituting the trust. We think they cannot, and for these reasons: The administrators acquired the title for the benefit of the estate, and not by way of any breach of trust. The estate still owed debts, so that it was necessary to sell the land again. The legal title was in them, and they sold the land by the direction of the probate court, and accounted for the proceeds. Under these circumstances it was not necessary to procure a new order to show cause why the land should not be sold. The estate and these plaintiffs received all the benefits arising from the transaction, and the claim now set up by the plaintiffs is unjust and inequitable, and they ought not to be allowed to redeem.

It is insisted on behalf of the plaintiffs that the sale by the administrators to Martin and French was made as security for the payment of $3,000, and the transaction should be deemed and considered a mortgage. There is evidence tending to show that such a transaction was agreed upon in the first instance, but the parties were advised that the administrators could not procure an order of the probate court allowing them to borrow money. They then procured the order of sale. The evidence shows to our entire satisfaction that the administrators' deed to Martin and French was not made as security, but was an intended out and out sale, with an agreement giving the administrators the right to purchase the property at any time within one year. The judgment of the circuit court, which was for defendants, is affirmed. All concur.

JENNINGS v. ST. LOUIS, I. M. & S. RY. CO. (Supreme Court of Missouri, Division No. 2. June 12, 1894.)

JURISDICTION OF SUPREME COURT.

Where, on appeal to the supreme court from a judgment denying a motion to retax costs, the amount involved is less than $2,500, and no other ground is shown why the court should take jurisdiction, the cause will be certified to the court of appeals.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by John M. Jennings against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment denying de

fendant's motion to retax costs, it appeals. Certified to the court of appeals.

H. S. Priest and H. G. Herbel, for appellant. Kehr & Tittmann, for respondent.

GANTT, P. J. This is an appeal from the judgment of the circuit court of St. Louis overruling a motion of the appellant to retax costs amounting to $36.25, which accrued prior to the first appeal in this cause, the decision of which is reported in 99 Mo. 394, 11 S. W. 999, and resulted in reversing and remanding the cause. A retrial was had, and resulted in another judgment in the circuit court for plaintiff, which was affirmed in 112 Mo. 268, 20 S. W. 490. As the amount involved is less than $2500, and no suggestion is made or cause shown why we should, on any other ground, take jurisdiction, the cause is ordered certified to the St. Louis court of appeals. All concur.

BURDEN et al. v. TAYLOR. (Supreme Court of Missouri, Division No. 1. July 9, 1894.)

SALE IN PARTITION-VALIDITY OF DEED BEFORE APPROVAL SETTING ASIDE SALE NOTICE TO PURCHASER-TAX DEEDS.

1. A sheriff's deed in partition, made before approval of the sale by the court, is void; and such sale may be set aside, upon report thereof to the court, without notice to the purchaser.

2. A tax deed containing no recitals showing that all the statutory requirements have been complied with is void on its face.

3. In ejectment, evidence to supply defects in a tax deed void on its face is inadmissible. Appeal from circuit court, Dekalb county; Charles H. S. Goodman, Judge.

Ejectment by John E. Burden and others against Michael Taylor. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

Brown & Imel and Casteel & Haynes, for appellant. John E. Burden, for respondents.

BRACE, J. This is an action in ejectment to recover 80 acres of land in Dekalb county, brought by John E. Burden, who claims the land in controversy as trustee for the other plaintiffs, who are the heirs at law and devisees of Benjamin F. Graves, deceased. The plaintiff Burden had judgment below, and the defendant appeals.

Benjamin F. Graves died in 1873, seised in fee simple of the premises. On the 29th of July, 1878, a suit was instituted in the circuit court of Atchison county, by some of said heirs and devisees against the others, for partition of the real estate of said deceased, including the land in controversy, the title to which became vested in them at his death, in which suit judgment for partition, in due form of law, was rendered, and order of sale of said lands made and entered of record at the September term, 1879, of said court, by virtue of which judgment the

sheriff of Dekalb county, on the 7th day of April, 1880, sold the land in controversy to one James Ewart for the sum of $60; and thereafter, on the 12th day of April, 1880, said sheriff executed, acknowledged, and delivered to said Ewart a deed for said lands. Afterwards, to wit, on the 27th day of September, 1880 (that being the first day of the regular September term of said court, and the second term thereof after said sale was made), the said sheriff filed in said court his report of the sale of said land to said Ewart; and on the same day the parties to said partition suit filed in said court their motion to set aside said sale on the ground of gross inadequacy of price, which motion was by said court, on the 12th day of said term, sustained, and the sale set aside and annulled. And it was ordered by the court that the sheriff of Dekalb county sell said real estate, at some term of the circuit court of said county, in accordance with the decree of partition aforesaid, and that he report his proceedings, etc., in pursuance of which order, the said sheriff afterwards, to wit, on the 5th day of April, 1881, sold said land to the plaintiff John E. Burden for the sum of $45, and made report thereof to said court at its September term, 1881, which report was duly approved by said court, and said sheriff directed, by order entered of record, to execute a deed to said land to the said Burden, in pursuance of which order the said sheriff, on the 19th day of October, 1883, duly executed, acknowledged, and delivered a deed conveying the premises to the said Burden, which deed he took under an oral agreement to hold for the use and benefit of the parties to said partition suit, and under which he now claims title to the premises. The defendant claims title under a quitclaim deed from said Ewart to Albert E. Putnam, dated August 19, 1880, and through mesne conveyances from him; also, under a tax deed from the collector of Dekalb county to the said Ewart, dated November 1870.

The circuit court of Atchison county had jurisdiction of the proceedings in partition by reason of the fact that the greater part of the lands of which said Benjamin F. Graves died seised were situate in that county, and none of the parties entitled thereto resided in the counties in which such lands were situated. The proceedings were regular, to judgment of partition and order of sale, under the statute. Rev. St. 1879, c. 56; Gen. St. 1865, c. 152. Under the statute, as it read in the revision prior to that of 1865, it was held that where the judgment of the court is for a partition of the property, and directs the land to be sold by the sheriff, the judgment is final, and an appeal therefrom must be taken at the same term at which the judgment is entered. Durham v. Darby, 34 Mo. 447; Hinds v. Stevens, 45 Mo. 209. In the latter case a change in the law is noticed, which was carried into the revision of 1865; and since then it has been uniformly held

of

that a report by the sheriff of his proceedings under the order of sale, and the approval of the court of that report, are required, and that until such approval the case is still pending. Pomeroy v. Allen, 60 Mo. 530; Parkinson v. Caplinger, 65 Mo. 290; Murray v. Yates, 73 Mo. 13; Turpin v. Turpin, 88 Mo. 337; Harbison v. Sanford, 90 Mo. 477, 3 S. W. 20; Holloway v. Holloway, 97 Mo. 628, 11 S. W. 233, Buller v. Linzee, 100 Mo. 95, 13 S. W. 344. It was accordingly held in Pomeroy v. Allen, supra, that "in partition sales the sheriff must report his proceedings to the court, and until there is an approval or confirmation of the same no deed can be executed." Although, under the statute 1855, it was held that an appeal would lie from an order of sale in partition, it was also held under that law that the court retained control of the sale, and of the execution of the deed in pursuance thereof (Neiman v. Early, 28 Mo. 275; Fortune v. Fife, 105 Mo. 433, 16 S. W. 687), and that the court, having control over the execution of its own process, could, at the term to which the report of the sale was made, set the same aside without notice to the purchaser (Neiman v. Early, supra). We are cited to a number of cases in which it is held that sales under execution cannot be set aside without notice to the purchaser, but these cases are not in point. Patton v. Hanna, 46 Mo. 314. A confirmation of the sale in such cases is not necessary, but sales made under order of court in partition are made subject to the approval of the court. "Sales of land by order of the court, in proceedings for partition, are judicial sales. As such, they must be reported to the court for confirmation, and until confirmed they are of no effect." Ror. Jud. Sales (2d Ed.) § 399. "Such approval is essential to the consummation of the sale. Without it, there is no authority for making any conveyance to the purchaser, and a conveyance without authority is obviously void." Freem. Jud. Sales, § 43; Freem. Cotenancy, $$ 544, 545; 2 Freem. Ex'ns, § 311. It follows that Ewart, under whom defendant claims, acquired no title to the premises by his sheriff's deed, made in pursuance of the first sale, which, upon report thereof to the court, was set aside, and that the plaintiff Burden did acquire the title of the parties to the partition suit by his sheriff's deed, executed in pursuance of the second sale, which was approved by the court, and that he holds the legal title to the premises, unless the title of the said Graves was divested by the tax deed of November, 1870, aforesaid. That deed is as follows:

"State of Missouri, County of Dekalb-ss.: To All to Whom These Presents shall Come: I, Daniel Ransom, collector of the state and county revenue for the county of Dekalb and state of Missouri, send greeting: Whereas, the tracts of real estate hereinafter described, situated in the county of Dekalb and state of Missouri, were each subject to taxa

tion for the year A. D. 1867; and whereas, the state and county taxes on the same, assessed in the names of the persons hereinafter set forth, remained due the state, amounting to the respective sums hereinafter set forth, including the interest thereon; and whereas, on the day of

18—, a judgment was rendered in the county court of Dekalb county, in the name of the state of Missouri, against the real estate, to wit, the southeast quarter of the southeast quarter of section thirty-two (32), and the southeast quarter of the southeast quarter of section thirty-three (33), all in township 60, of range 31, the same being the amount of taxes due and unpaid upon each of said tracts for the year 1867, and for the interest and costs thereon, legal notice having been given of the delinquency by first publishing a list of all the delinquent land and town lots upon which the tax of 1867 remained due and unpaid, embracing the lands aforesaid, as the law directs; and whereas, on such judgment a precept was, on the day of -, 18, issued from the office of the clerk of said county, directed to the clerk of the county aforesaid, and the same was delivered to the said collector on the day of 18, by virtue of which precept said collector did on the day of October, 1868, at the courthouse door of said county, in conformity with all the regulations of the statute in such cases made and provided, expose each of the above-described tracts of real estate, respectively, to public sale for the amount of the tax, interest, and costs due from each of the same, respectively, at which sale James Ewart, of Dekalb county, Missouri, being the best bidder for the least quantity of the same, respectively, as above set forth, and having paid then and there the said purchase money of each of the said tracts as stated, as appears on the certificate of purchase then and there made; and whereas, said described real estate has remained unredeemed up to this date, more than two years having expired since said sale: Now, therefore, in consideration of the premises, and of the several sums of purchase money by the said Ewart paid, as shown by the certificate of purchase above mentioned, and to me this day produced, I, Daniel Ransom, collector as aforesaid, do hereby grant, sell, and convey unto the said James Ewart, his heirs and assigns, forever. each and all of the above-described tracts of real estate purchased by him as aforesaid. and all the right, title, and interest of the owners at the time of said sale in and to each of the same, which are respectively assessed as above set forth, to have and to hold the same unto the said James Ewart, and to his heirs and assigns, forever, and subject only to the redemption in the case of infants and lunatics, as provided by law. Witness my hand and seal at office in Maryville this day of November, 1870. [Seal.] Daniel Ransom, Collector of Dekalb County."

As will be observed, this deed is a mere skeleton, and is defective in so many respects that it would be tedious to particularize them. Although the statute under which it was executed (Gen. St. 1865, c. 13, § 112) did not require the collector to make any recitals in the deed, or prescribe a form therefor, and undertook to make the deed conclusive evidence that the statutory requirements in regard to the sale and transfer of a citizen's property for delinquent taxes had been complied with, except in the three particulars therein mentioned, yet it was held that, as the power of the collector to make such transfer depended upon a compliance with those requirements, it was not within the power of the legislature to dispense with proof of such as were essential, and, unless it affirmatively appeared from the recitals of the deed that the essential prerequisites of the statute had been substantially complied with, the deed was void on its face, and would convey no title, and that such statements of the collector, as that "legal notice had been given as the law directs," or of his conclusions as to other jurisdictional facts, amounted to nothing. Abbott v. Lindenbower, 42 Mo. 162; Einstein v. Gay, 45 Mo. 62; Lagroue v. Rains, 48 Mo. 536; Large v. Fisher, 49 Mo. 307; Spurlock v. Allen, Id. 178; State v. Mantz, 62 Mo. 258; Spurlock v. Dougherty, 81 Mo. 171; Moore v. Harris, 91 Mo. 616, 4 S. W. 439. Under these authorities, and others that might be cited, there can be no question that the tax deed was void upon its face, and that the court committed no error in rejecting it.

After the court had refused to permit the tax deed to be read in evidence, the defendant introduced Ransom, the collector, as a witness, who testified that all the records of Dekalb county, including the tax records, had been destroyed by fire, and offered to prove by him, in detail, that the several prerequisites of the statute had been complied with before said deed was executed. Defendant also offered in evidence a copy of a newspaper published May 28, 1868, containing the land delinquent list for 1867, with notice of application for judgment thereon,-all for the purpose of validating said tax deed, and rendering the same admissible as evidence, which offer the court refused, and in doing so committed no error. Without stopping to notice the many particulars in which this offer failed to cover the prerequisites of the statute, pointed out in the brief of the counsel for the respondents, it is sufficient to say that the essential matters which were thus offered to be proved by parol testimony were matters of record, which could only be proved by the records, or, in the case of their destruction, by evidence of their contents. In this case there was no place for such evidence. The issue was simply the general issue in ejectment, in the trial of which the only thing in issue was the legal title; and evidence, the purpose of which

(Supreme Court of Missouri, Division No. 1. July 9, 1894.)

Appeal from circuit court, Dekalb county; Charles H. S. Goodman, Judge.

Ejectment by John E. Burden and others against Samuel W. Cook. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

Casteel & Haynes and Brown & Imel, for appellant. John E. Burden, for respondents.

BRACE, J. This is an action of ejectment, to recover 40 acres of land in Dekalb county, brought by John E. Burden, who claims the land as trustee of the other plaintiffs, who are the heirs at law and devisees of Benjamin F. Graves, deceased, in which the plaintiff Burden had judgment below, and the defendant appeals. This case is on all fours with that of Burden v. Taylor (an opinion in which is handed down at this term of court) 27 S. W. 349, except that in this case there is no claim of title under a tax deed. All the questions involved are disposed of in the first paragraph of the above opinion, and for the reasons therein stated the judgment is affirmed. All concur.

PORTER v. REED et al. (Supreme Court of Missouri, Division No. 2. June 26, 1894.)

QUIETING TITLE-BILL OF PEACE-PArties-MarRIED WOMEN.

1. Where plaintiff's grantor recovered in ejectment against defendants on the sole issue of legitimacy, and plaintiff has ever since been in possession, without any claim being made by defendants for many years, when they brought ejectment and dismissed it on plaintiff's being ready for trial, and soon after repeated this, and now threaten to bring another action unless plaintiff makes them a satisfactory proposition, their sole claim to title being that they are the lawful heirs of M., which was decided against them in their action with plaintiff's grantor, and the evidence as to which is lost by operation of time and otherwise, a suit in equity may be maintained to have title finally decided and prevent multiplicity of actions.

2. Married women, though under disability, are proper defendants in a suit in equity to prevent multiplicity of actions.

Error from circuit court, Jackson county. Action by John Porter against Eliza J. Reed and others. Judgment for plaintiff. Defendants bring error. Affirmed.

On the 21st of March, 1889, John Porter brought his action, returnable to the April term, 1889, of the circuit court of Jackson county, Mo., against Eliza J. Reed and Jasper Reed, her husband, Martha A. Witcher and Tandy K. Witcher, her husband, Fanny Feltenbarger and Jacob Feltenbarger, her

husband, Mary Miller, and George W. Miller. His petition, omitting the caption, was in the following words: "Plaintiff states that he is the owner of and entitled to the possession of, and is actually in possession of, the following described land in Jackson county, Missouri, to wit, the west half of the northeast quarter of section seven (7), township forty-nine (49), range (32) thirty-two. Also, part of the east half of the northeast quarter of said section seven (7), township forty-nine (49), range thirty-two (32), described as follows: Beginning at the northwest corner of said last-mentioned half-quarter, thence running east to the northeast corner of the northeast quarter of said section seven (7), thence south forty poles, thence west to the west line of said east half of the northeast quarter of said section seven (7), thence north forty poles to the beginning,-containing 20 acres, and being the north 20 of the east half of the northeast quarter of section seven (7), T. 49, R. 32. Also, a part of the northwest quarter of said section 7, T. 49, R. 32, bounded as follows: Beginning at the northeast corner of the northwest quarter of said section 7, thence running south eighty poles, thence north, 67° west, forty (40) poles, to a corner on the east bank of the Big Blue river, thence down on said Big Blue river to its intersection with the north line of said section 7, thence east to the beginning,-containing about ten acres."

Plaintiff states that he has been continuously in the adverse possession and ownership of said land since March 4, 1872, under the following deeds, to wit: A warranty deed, dated January 12, 1872, recorded March 4, 1872, in book 93, page 578, in the recorder's office at Independence, Mo., executed by Hiram Miller, Henry C. Miller, James W. Miller, John D. Miller, Ann Collin, John F. Collin, by J. Brown Hovey and George W. Buchanan, their attorneys in fact; a deed from Alfred J. Galbraith, by George W. Buchanan, his attorney in fact, dated also January 12, 1872, and recorded on March 5, 1872, in book SS, page 578, of the records of Jackson county, at Independence, Mo.; a deed from James A. Etter and wife, Mary Jane, dated January 18, 1873, and recorded March 3, 1873, in book 105, page 400, of the records of Jackson county, at Independence, Mo. Plaintiff states that by said deeds he obtained the entire title to said lands, and avers that in the year 1858 all the title and the actual possession of said land was vested in one Henry Miller; that said Henry Miller died in said year 1858, or in January, 1859, and that he left no will; that at his death he left as his heirs his widow, Elizabeth Miller, and his children, Hiram Miller, Henry C. Miller, James W. Miller, John D. Miller, and Ann Miller; that George W. Buchanan administered on the estate of said Henry Miller, deceased, and settled said estate without disposing of said land; that at the death of said Henry Miller one Fanny Russell, who was living with said Henry

Miller in his lifetime as his housekeeper, was left in occupancy of said land; that said Fanny Russell had with her on said land the defendants Eliza Jane Reed, known then as Eliza Jane Miller, Martha Ann Witcher, then known as Martha Ann Miller, Fannie Feltenbarger, then known as Fanny Miller, Henry Miller, and George W. Miller; that Eliza Jane Miller afterwards, in 1867, was the wife of one Henry Akers, Martha Ann Miller was, in 1867, wife of Tandy K. Witcher, and Fanny Miller was, in 1867, wife of Jacob Feltenbarger; that said defendants were the children of said Fanny Russell, and they remained with their mother on said land during the troubled times of the civil war, in actual occupancy of said land; that after the war, and in 1867, said Hiram Miller, Henry C. Miller, James W. Miller, and Ann Weatherby, formerly Ann Miller, brought suit in ejectment against said Fanny Russell and her said children, Eliza Jane Akers, by the name of Jane Akers, and her husband. Henry Akers, and Fanny and Jacob Feltenbarger, her husband, Martha Ann and Jacob Feltenbarger, her husband, and Henry and George W. Miller; that said suit was brought in the circuit court of Jackson county, at Independence, and was numbered on the dockets of said court as 7,380; that afterwards, on the 30th day of September, 1869, said cause came on to be heard before a jury, who found the issues for the plaintiffs, and judgment was duly rendered thereon, and is of record in Record O, page 514, of the circuit court records at Independence, Mo., awarding said lands to said plaintiffs, Hiram Miller, Henry C. Miller, James W. Miller, John D. Miller, and Ann Weatherby, and affirming their title to the possession thereof; that on said judgment said parties were accordingly put into possession of said lands; that said Ann Weatherby then married one John F. Collin; that plaintiff, by the deeds aforesaid, came into ownership of all the title of said parties in and to said lands; that defendants never made any pretense of claim to said land from the time plaintiff bought and took possession thereof till the 22d day of September, 1887, when they sued plaintiff in ejectment, claiming title to said lands; that said Eliza Jane had in the meantime got rid of said Henry Akers, and had married Jasper Reed; that said case was brought in the circuit court of Kansas City, Mo., and was numbered 10,606 in said court; that plaintiff was put to heavy expense in employing attorneys and preparing to defend said cause; that nevertheless, on the day when said cause was set down for trial, defendants dismissed their said cause without trial; that afterwards, on the 15th day of August, 1888, defendants again sued plaintiff in ejectment for 80 acres of said land in the circuit court of Jackson county, Mo., at Independence, Mo., which case was numbered on the docket of said court as 1.827; that plaintiff was again put to heavy expense in employing attorneys to